The Fair Work Commission has dismissed a HR manager’s unfair dismissal claim after she was dismissed for removing her own HR file from the business. The long-term employee was responsible for a ‘variety of administrative, managerial and record-keeping functions’ and for ‘maintaining and securing all documentary records’.

In circumstances the Commission found held an ‘element of tragedy’, the applicant’s ‘outstanding work record, and … high regard’ within the business were not enough to outweigh the ‘great mistake’ of removing her HR file.

In September 2015, the applicant was involved in a discussion with a number of other managers regarding stock that had been written off. Following this meeting, a manager who had been present contacted the applicant via email criticising her participation in the meeting and making ‘allegations of impropriety’. The applicant objected to this suggestion and demanded a written apology. Receiving no apology, the applicant lodged a formal complaint with the business which was investigated by an external HR consulting firm. This investigation rejected her complaint and advised she would not be receiving an apology and should ‘move on’.

The investigation also found the applicant’s conduct in the meeting was ‘not appropriate and was unjustified’. As the applicant was unsatisfied with this report, she requested a formal response from the external HR consulting firm. At the start of December 2015 the same manager who had earlier criticised the HR manager spoke with her regarding a separate HR matter. The applicant tried to engage the other manager regarding her complaint and his refusal to apologise. This led the manager to complain to his superior who escalated the issue to the HR consultant. A meeting was held with the applicant about her ‘on-going pursuit of an apology’ and the decision was made to place her on ‘special leave with pay’ with documented allegations to be provided for her response. It was also decided she would be required to undertake an independent medical assessment whilst on leave. When leaving the office, the applicant requested to not be escorted as she wanted to ‘avoid embarrassment’. She returned to her office to collect her personal belongings and at this time, also took her personal HR file.

In mid-December, whilst the applicant was on the period of special leave, the business queried whether the applicant had the copy of her HR file, as it was missing from the premises, and advised that should it not be returned, she would be in ‘breach of her duties owing to her employer’. No response was received from the applicant’s lawyer following numerous additional requests. A final letter was sent in late December indicating the business’ concern about the location of the file and advising the applicant that disciplinary action would be taken should the file not be returned, which ‘was likely to involve the summary termination of the applicant’s employment for wilful misconduct’. When no further response was received, the business decided to terminate her employment on the grounds of wilful misconduct.

When questioned about the reasons for removing the HR file, the applicant alleged she was ‘concerned that her HR file was the only objective evidence that could show that she was a diligent and productive employee’. Her defence claimed she was not provided a ‘reasonable opportunity to have been afforded procedural fairness’ however the Commission held the business was ‘entitled to consider … the absence of any acknowledgement or response’ as a refusal to comply with a direction and provided a valid reason for termination. Despite ‘certain procedural errors’, the Commission held they ‘have not operated so as to mitigate the wilful and persistent misconduct of the applicant’. As such, the termination was not considered to be unfair and the application was dismissed.